Lewis v. Forrest City Special Improvement District

• Decision Date: 08 January 1923
• Docket Number: 69
• Citation: 246 S.W. 867,156 Ark. 356
• Parties: LEWIS v. FORREST CITY SPECIAL IMPROVEMENT DISTRICT
• Court: Arkansas Supreme Court

246 S.W. 867

156 Ark. 356

LEWIS v. FORREST CITY SPECIAL IMPROVEMENT DISTRICT

No. 69

Supreme Court of Arkansas

January 8, 1923

Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor affirmed.

Decree affirmed.

Walter Gorman, for appellant.

The ordinance laying off the district was not legally passed, 80 Ark. 108; 28 Cyc. 355; 71 A. 211; 10 A. 162; 80 N.W. 564; 50 N.W. 316; 71 N.W. 189; 54 N.E. 1081; 90 N.E. 583; 25 N. J Law 399; 19 R. C. L. 892. The signing of the ordinance by the mayor, after his term of office expired, was of no effect. 93 N.W. 510. Courts will not take judicial notice of ordinances. 68 Ark. 483; 108 Ark. 24. The ordinance was never recorded as provided by law. C. & M. Digest, § 7499; 3 Pa. Co. Ct Rep. 480. It is improper and illegal for a member of a municipal council to vote upon any question in which he is personally interested. 19 R. C. L. 897; 67 A. 564; 44 L. R A. 728; Cooley's Constitutional Limitations (7th ed.) 392.

Mann & Mann, for appellee.

A mere delay in the mayor affixing his signature to an ordinance will not defeat the express wishes of the taxpayers. His signature is merely a ministerial act as a means of authenticating the record. C. & M. Digest, § 7499; 28 Cyc. 357; 19 R. C. L. 892. The presumption is that the signing of the petition by the officers of the corporations was authorized. 144 Ark. 249; 79 Ark. 338; 89 Ark. 435; 116 Ark. 520; 103 Ark. 283.

MCCULLOCH C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

It appears that there have been organized in the city of Forrest City three local improvement districts under general statutes (Crawford & Moses' Digest, § 5647 et seq.), designated, respectively, as Forrest City Improvement District No. 1, Improvement District No. 2 of Forrest City, and Improvement District No. 3 of Forrest City, for the purpose of constructing a waterworks plant, an electric light plant, and a sewer system within the territory of the respective districts, and, after the completion of the improvements, they were taken over, for operation, by the city council. The city has incurred in the operation of said districts an unpaid indebtedness of $ 51,013.76.

The General Assembly of 1921 enacted a statute authorizing the organization, under general statutes, supra, of the real property in the city of Forrest City, or in any part which includes the whole of the territory embraced within the three districts heretofore referred to, into an improvement district to be known as "The Forrest City Special Improvement District," and with authority to "take over and be the owner of all the real and personal property and property rights and choses in action now belonging to Forrest City Improvement District No. 1, Improvement District No. 2 of Forrest City, and Improvement District No. 3 of Forrest City, and shall assume all debts and obligations of said districts, and shall have power to repair, enlarge, overhaul, erect and in every manner equip the present plants belonging to said three improvement districts heretofore existing, or to purchase and install new machinery and power plants, erect any suitable buildings, to purchase real or personal property, to sell or trade any real or personal property now owned by either of said districts or hereafter acquired by it, to enlarge and extend water, sewer and light facilities, lay additional water-pipes or erect additional electric lines, or lay additional sewers, as needed."

Another section provides that the new district "shall assume and discharge all liabilities incurred by the city of Forrest City in the operation of any of said plants, and in the improvement thereof." The statute provides that the district shall be organized pursuant to the general statutes and be controlled by said statutes, except as otherwise specifically provided in the new statute.

The statute contains a recital that "it has been found advantageous to consolidate the operations of said districts, treating them as a single district for the purpose of economy and efficiency in their operation," and that, on account of the growth of the city, "there is much territory requiring water, electric light and sewers which is not served by said districts, and the water, electric light and sewer plants need large repairs, reconstruction and great extensions in order to serve the people of said city." Special Acts, 1921, p. 1358.

Pursuant to the terms of this statute, Forrest City Special Improvmeent District was created by ordinance upon the petition of ten owners of real property, in accordance with the general statutes, supra. The second petition asking for the improvement, and purporting to be signed by a majority in value of the owners of real property in the proposed district, was filed with the city council, and, after notice, it was found to contain a majority, and an ordinance was enacted authorizing the construction of the improvement and imposing the cost on the real property in the district.

The two appellants, who are owners of real property in the district, instituted this suit in the St. Francis Chancery Court to restrain further proceedings under the ordinances, and they attack the validity of the statute itself, also the validity of the ordinances of the city, as well as raising the question of the majority in value of the property owners having signed the second petition.

On the hearing of the cause on testimony adduced by each side, the chancery court dismissed the complaint for want of equity, and an appeal has been prosecuted.

An attack is made on the validity of the statute on the sole ground that the Legislature could not authorize the creation of a local improvement district with power to pay the debts incurred by the city in the operation of the improvements constructed by the old districts, especially where the indebtedness of the city included interest on notes or other written obligation.

As to the question of authority to pay interest, it can be said that no such authority is expressly conferred in the statute. The statute merely provides that the new district, when organized, "shall assume and discharge all liabilities incurred by the city of Forrest City in the operation of any of said plants, and in the improvement thereof." This language refers, of course, to valid and enforceable obligations of the city, and the new district is not bound to pay any other asserted liability. We cannot adjudicate in advance what will be treated as valid obligations, as the district has never got far enough along to actually undertake to assume or pay the obligations of the city. Owners of property would, of course, be entitled to be heard in court to restrain any unauthorized act of the commissioners in attempting to pay an illegal obligation of the city.

This statute was passed for the purpose of enabling the new district formed under its terms to take over the affairs of the three former districts and to assume their obligations, and, as a part of the adjustment of equities in taking over the property of the old districts, the new one is required to assume the indebtedness incurred by the city in operating these districts while under its control. There is no legal objection to the inclusion of these things in the taking over of the old districts by the new one, since it is necessary to operating under the new district that the assent of a majority in value of the owners of property in the district be obtained. The attack upon the validity of the statute is therefore unfounded.

It is next contended that the second ordinance of the city council authorizing the construction of the improvement and imposing the cost on the real property in the district is void because it was not properly recorded and authenticated by the signature of the mayor, as provided by statute.

Counsel for appellants relies on the statute, which reads as follows:

"All by-laws or ordinances shall, as soon as may be after their passage, be recorded in a book kept for that purpose, and be authenticated by the signature of the presiding officer of the council and the clerk; and all by-laws or ordinances of a general or permanent nature, and of those imposing any fine, penalty or forfeiture, shall be published in some newspaper of general circulation in the corporation. Provided, in incorporated towns where no newspaper is published, written or printed notices posted up in five of the most public places in said corporation shall be deemed a sufficient publication of any law or ordinance for incorporated towns; and it shall be deemed a sufficient defense to any suit or prosecution for such fine, penalty or forfeiture to show that no such publication was made." Crawford & Moses' Digest, § 7499.

The city clerk was introduced as a witness, and produced a certified transcript of the ordinance, purporting to have been taken from the record, and also produced the record itself. The ordinance in question appeared on a typewritten page or pages pasted into the record kept for the purpose of recording ordinances, and this was signed by the mayor and city clerk, that is, by Mr. Grobmyer, the person who was mayor at the time the ordinance was passed. It was shown by oral testimony that Mr. Grobmyer's term of office expired within a day or two after the ordinance was passed, and that he did not sign the record until after he went out of office.

Counsel is mistaken in his assumption that the signature of the mayor to the ordinance is essential to its legal enactment, or that the signature of that officer to the record is essential to its proof. The mayor of a city has authority under the statute (Crawford & Moses' Digest, § 7701) to veto an ordinance, but there is nothing in the statute requiring him to approve it or sign it before it...